ILF – Afghanistan

Introduction

ILF-Afghanistan is a countrywide public defender organization that provides free criminal defense services to Afghanistan’s poor. It was the first and, to date, remains the only nongovernmental organization in Afghanistan providing systematic representation to all indigent Afghans accused of crimes, without regard to ethnicity, gender, age or political affiliation. In 2003, the ILF opened Afghanistan’s first independent public defender office in Kabul with two Afghan lawyers. Since its founding, ILF-Afghanistan has represented over 25,000 indigent clients.

Najiba Taj (front left), a former juvenile court judge, became Afghanistan’s first female criminal defense lawyer when she joined ILF-Afghanistan in 2003

Background

Nearly 30 years of civil war, insurgency and Taliban rule decimated Afghanistan’s justice system. Under Taliban rule, non-Islamic laws were replaced by a strict interpretation of Sharia, and clergy replaced professional judges and prosecutors. Punishments were swift and exceedingly harsh. Accused persons did not have the right to a lawyer; they often languished in detention for months or years without charge or trial. Many prisoners were not released even after their sentences expired.

When the Taliban was overthrown in late 2001, defense lawyers were virtually non-existent. The vast majority of accused persons were too poor to hire a lawyer. There was no functioning legal aid system. A legal aid department, created under the auspices of the Supreme Court in 1989, existed in name only. To rectify this neglect, in 2003, the ILF, with support from the Ministry of Justice and the Judicial Commission overseeing judicial reconstruction, launched the country’s first legal defender offices, the International Legal Foundation-Afghanistan (ILF-Afghanistan). The ILF immediately began to recruit and train a new cadre of defense lawyers to represent the indigent accused.

The Afghan government, with support from the international community, soon made other important reforms. In 2004, Afghanistan’s Grand National Assembly (the Loya Jirga) adopted a new constitution guaranteeing fundamental rights essential to a fair trial, including the right to counsel, the presumption of innocence and a prohibition against the use of torture and arbitrary detentions. Afghanistan built courthouses, prisons and a police force. Judges, prosecutors and lawyers were trained in the new laws and procedures.

While these reforms improved the system, significant challenges remain. The absence of due process of law persisted — a fundamental failing of the Afghan legal system, as Afghans continue to face arbitrary detentions. Furthermore, despite the efforts of non-governmental organizations, such as the ILF — and government institutions such as the Ministry of Justice — many accused persons still do not have access to counsel.

ILF-Afghanistan’s Work

ILF-Afghanistan has been instrumental in establishing the right to counsel in Afghanistan’s formal justice system. When ILF-Afghanistan first opened, its lawyers were routinely denied access to their clients in jail and, in many instances, they were deterred from presenting a defense in court. However, through zealous and effective advocacy they were able to demonstrate their critical role in ensuring the accused’s right to a fair trial. In 2009, judges interviewed for an independent evaluation of ILF-Afghanistan stated that defense lawyers were “working hard to keep the system and particularly the prosecutor and police in check.” According to one judge, “at first the judges did not pay much attention to the defense and did not appreciate the role of the defense attorneys in court. To be honest,” said the judge, “they opened our eyes to the irregularities that existed in the judicial system.”

Since 2003, ILF-Afghanistan has provided representation to over 25,000 indigent Afghans accused of crimes. Given the high number of accused persons subjected to arbitrary and prolonged pre-trial detention, ILF-Afghanistan prioritized their representation. This early intervention has had a tremendous impact: Since 2007, early representation has resulted in the release of an increasing number of ILF-Afghanistan’s clients from detention pending trial. From 2007 to 2009, the number of ILF-Afghanistan clients released from pre-trial detention increased from 13 to 23 percent.

ILF-Afghanistan operates legal clinics in four universities that provide students with hands-on experience in criminal defense

Legal Clinics

In 2007, in partnership with the Open Society Justice Initiative and the University of Herat Faculties of Law and Sharia, ILF-Afghanistan established the country’s first legal clinic. The first clinic offered third- and fourth-year law students at the University of Herat an opportunity to work with the lawyers in ILF-Afghanistan’s Herat office. Since then, ILF-Afghanistan has established legal clinics in Jalalabad, Mazar-e-Sharif and Kabul. These clinics offer practical experience to law students while providing much needed legal assistance to underserved clients.

The clinics enroll twenty students each semester and offer three-month legal internships that present the fundamentals of criminal defense and provide hands-on experience representing clients under the close supervision of ILF-Afghanistan staff attorneys. Clinics include male and female students and have proved to be an important tool for encouraging women to practice criminal defense.

While the majority of clinic alumni pursue careers in criminal defense, those that do not still enter the legal profession with an understanding of the important role of defense lawyers in the criminal justice system. Students who participate in the clinics also become much more familiar with Afghan law because of their practical experience, evinced by the high rate at which clinic graduates pass the examination to become prosecutors and judges.

Instilling a Culture of Proactive Defense Advocacy

For the first four years of ILF-Afghanistan’s operations, International Fellows provided individual case-by-case mentoring to staff lawyers. The International Fellows provided legal and technical expertise tailored to the laws of Afghanistan and assisted with the day-to-day representation of clients. This mentoring transformed the role of ILF-Afghanistan’s defense lawyers from that of passive participants in the criminal process to proactive advocates for the rights of the accused. This resulted in major improvements in their defense practice, shifts in lawyers’ assumptions about their role, and led to the establishment of a true culture of defense where none previously existed. The Fellows program began in 2003 and ended in 2007, when the ILF felt local Afghan staff was ready to mentor and train new junior lawyers internally.

Two cases, two opportunities to change the legal culture of Afghanistan

When the ILF first entered post-Taliban Afghanistan, a number of challenges became readily apparent. But two instances proved especially illuminating: a case of adultery brought to the ILF-Afghanistan office in Kabul, and another of a stolen car.

In early 2003, an ILF-Afghanistan staff lawyer met with her first client, a young man accused of adultery. The young man told his lawyer that he was married to the woman in question; according to the prosecutor, the couple was not married. The lawyer, accustomed to operating in an environment in which questioning authorities was not tolerated, took the government at its word and assumed her own client’s guilt. However, after the ILF International Fellow convinced her to investigate the case independently, she discovered that her client had been entirely truthful. One year later, when the same lawyer was representing another client in court, the judge began to berate her personally for representing an “infidel.” This time, having learned both the importance of the presumption of innocence and the rights of the accused, the same lawyer stood up to the judge, replying, “Everyone has the right to counsel.”

In another case, ILF-Afghanistan’s client was charged with stealing a car out of the parking lot of the Ministry of Foreign Affairs. The client insisted that he was innocent, telling his lawyer that the parking lot of the ministry had a security camera. Though skeptical about his client’s truthfulness, with encouragement from his international mentor, the lawyer requested the security tape. The tape showed the alleged stolen car had not, in fact, been taken and that ILF-Afghanistan’s client had driven out of the parking lot in his own car. Following experiences like these, all of ILF-Afghanistan’s lawyers have gone on to become informed, effective advocates for their clients.

ILF-Afghanistan Legal Victories

ILF-Afghanistan has won many legal victories over the years and done much to guarantee the rights of accused persons. Below are several examples of ILF-Afghanistan’s successes:

Eliminating Debtors’ Prisons

Two days after the Afghan government adopted the 2004 Constitution, ILF-Afghanistan filed a legal application seeking the release of people who had been imprisoned for failure to repay a debt. Arguing that Article 32 of the new Constitution prohibits debtor’s prisons, ILF-Afghanistan successfully convinced courts to order their clients’ release. The first case argued by ILF-Afghanistan involved a man who had been convicted of fraud, sentenced to a term of imprisonment of four months, and been required to repay the debt. By the time ILF-Afghanistan met this client, he had been incarcerated for more than six months because he could not afford to repay the debt. In the context of this case, the court agreed with ILF-Afghanistan’s argument and released him. He had served his custodial sentence and was unlawfully being held for his debt only, in direct violation of the Constitution.

Preventing Unlawful Detention

ILF-Afghanistan also won an important victory in the fight against unlawful detention. As soon as the new criminal procedure code, known as the Interim Code of Criminal Procedure (ICCP) was enacted, ILF-Afghanistan’s lawyers began filing motions to have their clients released when indictments were not filed within the 30-day period stipulated by the ICCP. ILF-Afghanistan lawyers continued to file these motions until the courts began to accept their arguments and began to release detainees if the indictment deadline was not met. The motions also resulted in prosecutors’ greater adherence to the rule of law.